Citation Nr: 0509638
Decision Date: 03/31/05 Archive Date: 04/07/05
DOCKET NO. 99-07 894 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for residuals of a
bunionectomy of the left great toe with degenerative
arthritis, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Sean A Ravin, Attorney-at-law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from February 1952 to
March 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1998 rating decision of the
Winston-Salem, North Carolina, Department of Veterans Affairs
(VA) Regional Office (RO), which denied an increased rating
for the issue presently on appeal. In July 1999, the veteran
testified at a videoconference hearing before the undersigned
at the RO.
In August 2000, the Board denied the instant appeal. The
veteran appealed the denial to the U.S. Court of Appeals for
Veterans Claims (CAVC), which in an August 2001 Order,
vacated the August 2000 Board decision and remanded the case
for readjudication consistent with the Secretary's Motion for
Remand.
The Board remanded the claim in October 2003, for further
development.
The case is now ready for appellate review.
FINDINGS OF FACT
1. All of the evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. Residuals of a bunionectomy of the left great toe with
degenerative arthritis are manifested by pain, slight loss of
balance, tenderness; no more than moderate disability is
shown.
3. No unusual or exceptional disability factors such as
marked interference with employment or frequent periods of
hospitalization have been presented with regard to the
veteran's residuals of bunionectomy of the left great toe
with degenerative arthritis.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
residuals of a bunionectomy of the left great toe with
degenerative arthritis have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a,
Diagnostic Codes 5280, 5281, 5284 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act
The Board must first address the Veterans Claims Assistance
Act of 2000 (VCAA). This law redefines the obligations of VA
with respect to the duty to assist and includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
First, VA has a duty to notify the veteran and his
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A.
§§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004).
Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 38 C.F.R. § 3.159(a)(5) (2004).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004).
With respect to VA's duty to notify, the rating decision on
appeal, together with the statement of the case, and
supplemental statement of the case, adequately informed the
veteran of the types of evidence needed to substantiate his
claim. Furthermore, the RO sent a letter to the veteran in
August 2004, which asked him to submit certain information,
and informed him of the elements needed to substantiate his
claim. In accordance with the requirements of the VCAA, the
letter informed the veteran what evidence and information VA
would be obtaining, and essentially asked the veteran to send
to VA any information he had to process the claim. The
letter also explained that VA would make reasonable efforts
to help him get evidence such as medical records, but that he
was responsible for providing sufficient information to VA to
identify the custodian of any records. VA informed the
veteran that he needed medical evidence to show that his
service-connected residuals of a bunionectomy had worsened.
Additional medical evidence was submitted, and later, in a
letter dated in February 2005, the veteran indicated that he
had no further medical evidence to submit on behalf of his
claim. Therefore, the Board finds that the Department's duty
to notify has been fully satisfied with respect to the claim.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims discussed the
statutory requirement in 38 U.S.C.A. § 5103(a) that VCAA
notice be sent to a claimant before the initial adjudication
of his claim. That did not occur here, as the veteran's
claim began prior to the VCAA. Nevertheless, as indicated
above, there was later content complying notice and proper
subsequent VA process. In addition, the veteran was provided
an opportunity to testify at a regional office and
videoconference hearing. He testified at both in 1999.
Therefore, any error as to timing of the notice was harmless.
With respect to VA's duty to assist the veteran, the RO has
obtained or attempted to obtain all evidence identified by
the veteran. He has not identified any additional evidence
pertinent to his claim not already of record, or attempted to
be located, or requested by VA. There are no known
additional records to obtain. There is nothing further that
can be done in this respect. Examinations were conducted in
this case in connection with this claim on more than one
occasion.
The Board finds that VA has satisfied its duties to inform
and assist him.
II. Increased Evaluation for Residuals of Bunionectomy
Service connection was established for postoperative
residuals of bunionectomy of the left great toe with moderate
degenerative changes by rating decision of August 1980. The
record shows that he injured his foot in service and
complained of pain in the left metatarsophalangeal joint of
the left great toe. He was diagnosed as having hallux
rigidus of the left great toe. He underwent surgery,
including an ostectomy of the left great toe. A 10 percent
rating was provided for the disability effective from
June 1980. This evaluation has remained in effect to the
present.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work. When there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter under consideration, the benefit
of the doubt in resolving the issue shall be given to the
claimant. 38 U.S.C.A. § 5107 (West 2002). Furthermore, 38
C.F.R. § 4.7 provides that, where there is a question as to
which of two disability evaluations shall be applied, the
higher evaluation is to be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating is to be assigned.
These requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based on a single,
incomplete or inaccurate report and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). Moreover, VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusions.
Under diagnostic code (DC) 5280, consideration is given to
unilateral hallux valgus. Under that code, a 10 percent
rating is assigned for unilateral hallux valgus that was
operated on with resection of the metatarsal head. A
10 percent rating may also be assigned under this diagnostic
code when the condition is severe, if equivalent to
amputation of the great toe. A 10 percent rating is the
maximum rating under this diagnostic code. Under DC 5281,
severe unilateral hallux ridgus is rated as severe hallux
valgus, and only a 10 percent rating may be assigned under
this diagnostic code. DC 5284 pertains to other foot
injuries. Under this diagnostic code, a 10 percent rating is
assigned for a moderate foot injury. A 20 percent rating is
assigned for a moderately severe foot injury, and 30 percent
is assigned for a severe disability. Note: With actual loss
of use of the foot, rate 40 percent.
A thorough review of all of the medical evidence of record to
include all VA examination reports, privates medical records,
and testimony at a March 1999 RO hearing and a July 1999
videoconference hearing, shows that the veteran's residuals
of bunionectomy of the left great toe with degenerative
arthritis is appropriately rated at 10 percent.
The objective medical evidence shows that the veteran
underwent a VA examination in August 1998. He had
dorsiflexion of the left great toe of 0 degrees and plantar
flexion of 20 degrees. His range of motion was limited by
pain, but there was no fatigue, weakness, or lack of
endurance. He had no edema, instability, weakness, or
tenderness. His posture was good in all planes. His x-rays
showed marked degenerative changes of the first MTP joint.
The August 2002 VA examination showed similar findings. He
complained of pain of the left great toe and he had
degenerative joint disease exhibited in that area. He did
relate that he had flare-ups during cold weather but the
findings of additional functional impairment was described as
slight. There was no swelling of the joint and no tenderness
found. The power and strength was described as normal and
slight dorsiflexion was described. X-rays taken at that time
revealed calcaneal spurs and moderately advanced degenerative
joint disease of the first MP joint.
His December 2004 VA examination revealed that the left great
toe was slightly shorter than the second toe. He had hallux
valgus and, mild, with 15 degrees of valgus deviation of the
left great toe. The left great toe dorsiflexed 20 degrees
and plantar flexed 20 degrees without pain, and following
repetitive motion, there was no change. There was tenderness
to palpation at the metatarsophalangeal joint of the left
great toe, but no instability or edema was noted. He had a
mildly antalgic gait, limping on the left lower extremity,
but no limitations standing or walking. He wore no
corrective shoes, nor did he use any corrective devices. Two
private treatment records were submitted. One, dated April
1998, indicated that the veteran complained of pain in the
left foot. The other, in July 2001, showed complaints of a
swollen left foot after the veteran tripped.
The veteran testified at an RO hearing regarding his left
great toe residuals in March 1999, and again at a
videoconference hearing in July 1999. The testimony provided
at each hearing was essentially the same. He complained of
pain around the left great toe, complained of loss of
balance, especially when bowling, looking like he was
stumbling, and he was not receiving any treatment for his
service-connected disability.
Considering the veteran's testimony, and the entire medical
evidence of record, the veteran's symptomatologys shows that
his residuals of a bunionectomy of the left great toe with
degenerative arthritis is appropriately rated as 10 percent
disabling. His symptoms are no more than moderate in degree
at any examination. He complains only of pain, and that is
adequately rated in the 10 percent evaluation. There has
been no real change in his disability, and he generally has
no swelling, nor requires any treatment for the disability.
He uses no corrective devices, or corrective shoes.
Moderately severe findings, necessary to warrant a 20 percent
rating is not shown.
Additionally, the Board believes that the regular schedular
standards applied in the current case adequately describes
and provides for the veteran's disability level. There is no
evidence that the veteran has been hospitalized for treatment
of his residuals of a bunionectomy of the left great toe
during this appeal period. Neither does the record reflect
marked interference with employment due to the disability.
He has submitted no evidence of any type of employment that
would have been affected because of this disability.
Specifically, he indicated that he is not looking for
employment as he is retired. There simply is no evidence of
any unusual or exceptional circumstances that would take the
veteran's case outside the norm so as to warrant referral for
consideration of an extraschedular rating.
Based on the foregoing, the veteran's currently assigned
10 percent rating appropriately reflects the level of
disability exhibited by his impairment. Therefore, a rating
in excess of the presently assigned 10 percent is not
warranted.
ORDER
An increased rating for residuals, bunionectomy, left great
toe, with degenerative arthritis, is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs